An Arkansas inmate on death row who came within a day of being executed in 2017 received welcome news from a federal appeals court, which ruled he can sue state officials in his bid to have new tests run on DNA evidence.
Stacey Eugene Johnson, 53, who was condemned to death for the 1993 murder of Carol Heath in De Queen, received a stay of execution from the state Supreme Court in a 4-3 decision, remanding his case to circuit court for a hearing on his request for post-conviction DNA testing. In 2019, after the lower court denied Johnson's request, the state Supreme Court affirmed the ruling in a 5-2 decision, clearing the way for Johnson's execution.
Johnson was scheduled to be executed April 20, 2017, as then-Gov. Asa Hutchinson ordered a flurry of executions of eight death row inmates over an 11-day period in an effort to beat the clock on one of the drugs used in the state's three-drug protocol before it reached its expiration date at the end of April 2017.
In order to beat the deadline, Arkansas scheduled the eight executions to take place between April 17 and April 27, 2017, in a two-a-day execution schedule beginning April 17. Three of the inmates, Johnson, Don Davis and Bruce Ward, received stays of execution from the state Supreme Court and remain on death row awaiting execution. One inmate, Jason McGehee, was granted clemency by Hutchinson, and his sentence was commuted to life in prison without possibility of parole.
The other four inmates, Ledell Lee, Marcel Williams, Jack Jones and Kenneth Williams, were executed by lethal injection over a seven-day period beginning April 20, 2017.
Shortly before his scheduled execution date, Johnson, assisted by the Innocence Project, filed a petition in state court under Arkansas' post-conviction DNA testing statute, which is known as Act 1780, seeking DNA testing on 26 pieces of physical evidence related to Heath's murder, including swabs taken from Heath's body and hairs found at the crime scene that were never tested. Johnson, who is Black, argued that the proposed DNA testing might collectively point to a specific Caucasian perpetrator and call Johnson's guilt into question.
Johnson, who has spent a quarter-century on death row for Heath's murder, has argued for years that the untested evidence in the case could possibly implicate Brandon Ramsey, Heath's now-deceased ex-boyfriend.
Johnson was charged with Heath's murder in 1993 and was convicted of capital murder and sentenced to death the following year. That conviction was later reversed on appeal because of an evidentiary error, and in 1997 he was again found guilty of Heath's murder and sentenced to death. The Arkansas Supreme Court affirmed Johnson's conviction and death sentence on direct appeal.
Writing for the majority in the state Supreme Court's 2019 ruling, Justice Shawn Womack said that Johnson had failed to satisfy the predicate conditions for scientific testing under Act 1780, writing that "The availability of technologies not available at trial cannot mean that ... every criminal conviction involving biological evidence, is suddenly in doubt."
In 2021, following a denial by the U.S. Supreme Court for a review of his case, Johnson filed suit in federal court against the state attorney general, the prosecuting attorney of Sevier County and the director of the state Crime Laboratory, alleging that the continued refusal to allow new DNA testing constituted a denial of due process. Johnson also sought an order declaring Act 1780 unconstitutional and an injunction requiring the defendants to release the DNA evidence for further testing.
Last year, after U.S. District Judge Kristine G. Baker denied a motion to dismiss the lawsuit, the defendants appealed to the 8th Circuit Court of Appeals, which affirmed Baker's ruling Monday.
In its ruling, a three-judge panel of the 8th Circuit said it did not address the merits of Johnson's case, but limited its review "to the threshold issues of whether Johnson has standing and whether the defendants are immune from suit under the Eleventh Amendment."
"The defendants here are not immune from suit under the Eleventh Amendment because Johnson seeks prospective declaratory and injunctive relief and has alleged a sufficient connection between the defendants and Act 1780's enforcement," said the 8th Circuit panel in Monday's ruling.
"The Sevier County Prosecuting Attorney and the Director of the State Crime Lab have a sufficient connection because they possess and control evidence that Johnson seeks to test, and they have refused to provide it to him ... And the Attorney General has a sufficient connection because he has refused to agree to DNA testing and opposed Johnson's Act 1780 petition."
Attorney General Tim Griffin acknowledged in a text message to the Arkansas Democrat-Gazette that Monday's ruling was a setback, but he said he is confident the state will ultimately prevail in its bid to execute Johnson.
"I am disappointed by [Monday's] decision," Griffin said, "but now this case will move forward to the merits. This statute is constitutional and I look forward to defending it."